“This piece was originally published in the joint UK Law Societies’ monthly publication on EU law and policy, the Brussels Agenda.”

After failing to repeal the Human Rights Act 1998 (HRA) in the 2010-2015 Parliament whilst in coalition, the UK Conservative Government, now with a slim majority, is approaching the subject with renewed vigour. The current Government plan is to scrap the HRA and replace it with a British Bill of Rights and Responsibilities by the summer of 2016[1].

The HRA incorporates the European Convention on Human Rights 1950 (ECHR) into UK domestic law. It enables UK citizens to use the ECHR in any UK court, obliges UK courts to “take into account” the European Court of Human Rights’ (ECtHR) jurisprudence, read national legislation “so far as is possible” in line with the ECHR, and allows UK courts to declare that national legislation is incompatible with the ECHR (but only allows for the striking down of secondary, not primary, legislation).

The Government argues that the HRA undermines UK sovereignty and control over human rights issues, that it goes beyond ECHR commitments, and that the ECtHR has developed “mission creep”[2].

The Government says that while it wants to repeal the HRA, it would still like the UK to stay within the ECHR; thereby breaking the "formal link" between British courts and the ECtHR. However, if the Council of Europe (of which the ECHR is a part) does not agree that the Bill is a legitimate way of implementing the ECHR, then the Government would have the UK leave the ECHR entirely. ECHR withdrawal is a minefield best left for another article.

So what would the legal effects be of repealing the HRA? The short answer is that nobody knows until a draft of the Bill is actually released. However, it is possible to gaze into the post-HRA abyss that the Bill would need to fill.

One thing that would not change would be the UK's obligations under the ECHR (e.g. right to fair trial, freedom of expression etc). These obligations flow from the UK being a Contracting State to the ECHR. These include the principle that the UK would have to "abide by the final judgment of the Court in any case to which [it is a party]" (Article 46(1) ECHR).

However, UK citizens would only be able to use the ECHR at the ECtHR in Strasbourg; not domestic courts. UK courts would no longer be obligated to take into account ECtHR jurisprudence (though as mentioned the UK would still be bound by the decisions in cases to which it is a party), nor would it be possible to declare incompatibility between national legislation and the ECHR. Nor would domestic legislation have to be read in line with the ECHR. That said, some commentators have pointed out that these features are so ingrained into UK case law that the common law would ensure that these principles remain in practice[3].

Two further issues to consider are the repeal's effects in the context of the EU and devolution.

Even if the HRA is repealed, this would not stop the UK being bound by the EU’s Charter of Fundamental Rights of the European Union[4][5]. The Charter applies when a matter falls within the scope of EU law. Importantly, there is a potential backdoor through which the ECHR, including the judgments of the ECtHR, is applied in the context of the EU law. Articles 52 of the Charter builds a link between the Charter and the ECHR in that where the definition and scope of the Charter and ECHR rights are the same, the rights under the Charter and EU law should be interpreted in conformity with ECtHR judgments. This includes EU legal instruments and also where Member States are acting within the scope of EU law (see Article 51(1) of the Charter), as in N.S. v U.K.[6]. Here the Court of Justice of the EU (CJEU) followed earlier judgments of the ECtHR in deciding the conditions under which asylum seekers should not be returned to another EU Member State.

While a UK Protocol[7] to the Lisbon Treaty says that the CJEU and UK courts do not have the ability to declare UK legislation incompatible with the Charter, and that the Charter creates no "justiciable rights", this is seen as largely declaratory[8]. Its legal significance is debatable[9], particularly after the above case which asserted[10] that the Protocol does not call into question the Charter's effects on the UK, and a 2015 case saying the Protocol's scope is "far from clear"[11]. 

One expert also claims that any repeal of the HRA will in principle be contrary to EU law due to the special place that the ECHR and ECtHR have in CJEU case law and the Copenhagen criteria on how States become members of the EU (which includes respect for human rights)[12]. This means that the new Bill would have to be entirely subject to the special role for EU law in the UK as set out in the European Communities Act 1972, or else breach EU law.

A final EU-related issue is the potential accession of the EU itself to the ECHR, outlined in Article 6(2) of the Lisbon Treaty[13]. If the EU accedes, would it apply EU-wide measures to specifically implement the ECHR which would be at odds with the Bill? Again, the Government have previously stated that should the EU's accession not respect the UK's new system (post-HRA), then it may withdraw the UK from the ECHR[14].

Turning to devolution, The Scotland Act 1998, The Northern Ireland Act 1998 and the Government of Wales Act 1998 ('the devolution Acts') make it clear that no legislation can be passed by a devolved Parliament or Executive which is incompatible with ECHR rights. Some experts say this would be unaffected even if the HRA was repealed, although ECHR rights are specifically mentioned as being those outlined in the HRA in the devolution Acts, and the HRA is cited as one of several protected enactments that cannot be altered[15]. This in effect amounts to a second incorporation of the ECHR into domestic law[16].

There is also the issue of the Sewel Convention, set out in Article 14 of the Memorandum of Understanding between the Westminster and devolved legislatures[17]. This states that Westminster will not normally legislate with regard to devolved matters without the consent of the devolved legislatures. The HRA itself is not a devolved power - human rights in general, however, are[18]. It is possible therefore (though this is disputed[19]) that devolved legislatures may be able to block an HRA repeal unless the new Bill includes a specific provision bypassing the devolved legislatures' consent; or indeed includes amendments to the devolution Acts (which, again, would trigger the Sewel Convention). While the Sewel Convention is not formally binding (though all conventions are persuasive), there are moves to give it legislative footing[20]. In any case, to override Scotland on such a fundamental constitutional point could have severe political, not just legal, consequences. 

Following this, there is a possibility that, in the wake of an HRA repeal, the devolved legislatures establish their own separate Bills regarding human rights. This would lead to asymmetry in UK human rights. As a point of interest, the UK Parliament's Commission on a Bill of Rights noted that: "there was little, if any, criticism of the Strasbourg Court, of the European label of the Convention, or of human rights generally in Scotland, Wales or Northern Ireland."[21]

Finally, another devolution issue is the Northern Irish Good Friday Agreement, which states as a prerequisite that the ECHR be incorporated into Northern Irish law. If the HRA is repealed, Northern Ireland’s participation in the ECHR would have to be maintained through other means - the new Bill would have to cover this. Some commentators believe the Agreement makes it impossible not only to repeal ECHR obligations, but also HRA obligations in so far as they apply in Northern Ireland[22]. The Northern Ireland Human Rights Commission, and the Committee on the Administration of Justice, both claim that repealing the HRA would be a breach of the Agreement[23].

In short, any repeal of the HRA (leaving aside for a moment the bitter politics of such a move, as well as the potential loss of Britain’s credibility on human rights) would have to deal with the legal fallout surrounding commitments in EU and regional law. It is difficult to see how the proposed Bill would not be swallowed up by the HRA void.

Ben Wild

[1]Mark Leftly, 'British Bill of Rights to be fast-tracked into law by next summer' (The Independent, 17 October 2015) <http://www.independent.co.uk/news/uk/politics/british-bill-of-rights-to-be-fast-tracked-into-law-by-next-summer-a6698261.html> accessed on 14 January 2016

[2]Conservatives, Protecting Human Rights in the UK: The Conservatives' Proposals for Changing Britain's Human Rights Law (03 October 2014)

[3]Joshua Rozenberg, 'Human rights legislation in the UK: a cut-out-and-keep guide' (The Guardian, 01 September 2014) <http://www.theguardian.com/law/2014/sep/01/human-rights-legislation-uk-council-european-convention> accessed on 14 January 2015

[4]Charter of the Fundamental Rights of the European Union [2000] OJ 2000 C 364/01

[5]The Select Committee on the European Union Justice Sub-Committee, Inquiry on Potential impact on EU Law of repealing Human Rights Act (Evidence Session No1, 20 October 2015)

[6]Joined Cases N. S. v Secretary of State for the Home Department (2011),  C-411/10 [2010] andM. E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform (2011), C-493/10 [2010]

[7]Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom [2007] OJ C 306/156

[8]Aidan O’Neill QC, 'Is the UK’s ‘opt-out’ from the EU Charter of Fundamental Rights worth the paper it is written on? Part 2' (Eutopialaw, 20 September 2011) <http://eutopialaw.com/2011/09/20/is-the-uk%E2%80%99s-%E2%80%98opt-out%E2%80%99-from-the-eu-charter-of-fundamental-rights-worth-the-paper-it-is-written-on-part-2> accessed on 14 January 2016

[9]Ingolf Pernice, 'The Treaty of Lisbon and Fundamental Rights' in Stefan Griller/Jaques Ziller (eds.), The Lisbon Treaty. EU Constitutionalism without a Constitutional Treaty?(Springer Wien, 2008)

[10]Ibid [119]

[11]The Queen on the application of (1) David Davis MP (2) Tom Watson MP (3) Peter Brice (4) Geoffrey Lewis v The Secretary of State for the Home Department [2015] EWHC 2092 (Admin) [10]

[12]Steve Peers, 'Is repealing the Human Rights Act compatible with EU law?' (EU Law Analysis, 15 May 2015) <http://eulawanalysis.blogspot.co.uk/2015/05/is-repealing-human-rights-act.html> accessed on 14 January 2016

[13]Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C 2007 306

[14]See 12

[15]Iain McIver and Angus Evans, The European Convention on Human Rights in the United Kingdom (Scottish Parliament Information Centre Briefing 14/80, 07 November 2014)

[16]Crown Office Row, 'Will devolution scupper Conservative plans for a “British” Bill of Rights?' (UK Human Rights Blog, 02 October 2014) <http://ukhumanrightsblog.com/2014/10/02/will-devolution-scupper-conservative-plans-for-a-british-bill-of-rights> accessed on 14 January 2016

[17]Memorandum of Understanding and Supplementary Agreements Between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee (2013)

[18]Kanstantsin Dzehtsiarou and Tobias Lock, The legal implications of a repeal of the Human Rights Act 1998 and withdrawal from the European Convention on Human Rights (Durham University Library, 2015)

[19]Mark Elliott, 'Could the Devolved Nations Block Repeal of the Human Rights Act and the Enactment of a New Bill of Rights?' (Public Law for Everyone, 12 May 2015) <http://publiclawforeveryone.com/2015/05/12/could-the-devolved-nations-block-repeal-of-the-human-rights-act-and-the-enactment-of-a-new-bill-of-rights> accessed on 14 January 2016

[20]Harriet Cornell, 'Human Rights Act Repeal and Devolution: Quick Points and Further Resources on Scotland and Northern Ireland' (Global Justice Academy Blog, 13 May 2015) <http://www.globaljusticeblog.ed.ac.uk/2015/05/13/hrarepealmay2015> accessed on 14 January 2015

[21]Colm O’Cinneide, 'Human Rights, Devolution and the Constrained Authority of the Westminster Parliament' (UK Constitutional Law Association, 04 March 2013) <http://ukconstitutionallaw.org/2013/03/04/colm-ocinneide-human-rights-devolution-and-the-constrained-authority-of-the-westminster-parliament/> accessed on 14 January 2016

[22]See 16

[23]BBC, 'Human Rights Act: Tory pledge to scrap law 'breaches NI peace deal'' (BBC, 12 May 2015) <http://www.bbc.co.uk/news/uk-northern-ireland-32705020> accessed on 14 January 2015